Glenn F. Smith v. County of Galveston, Texas

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Opinion issued January 31, 2008































In The

Court of Appeals

For The

First District of Texas



NO. 01-07-00634-CV

__________



GLENN FLOYD SMITH, Appellant



V.



COUNTY OF GALVESTON, TEXAS AND ABL MANAGEMENT, INC., Appellees



On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 05CV1610



MEMORANDUM OPINION

Appellant, Glenn Floyd Smith, challenges the trial court's summary judgment rendered in favor of appellees, County of Galveston, Texas ("Galveston") and ABL Management, Inc. ("ABL"), in Smith's suit against Galveston and ABL for food poisoning that he allegedly sustained after eating a meal while incarcerated in the Galveston County jail. In his first issue, Smith contends that the trial court erred in granting Galveston and ABL summary judgment "based upon no evidence." In his second and third issues, Smith contends that his trial counsel "breached his fiduciary duties in representing [him] in a civil action" and that he "present[ed] a basis for imposing a duty upon his trial counsel when [his] counsel established a duty of care." We affirm.

Factual and Procedural Background

Smith filed suit, along with over 100 other inmates incarcerated in the Galveston County jail, for food poisoning that he allegedly sustained as a result of Galveston's and ABL's negligence in serving him a meal. Smith alleged that Galveston and ABL, the food service contractor, were guilty of "negligent and inappropriate food handling practices." Smith asserted causes of action for strict liability, "breach of an implied warranty for consumption," and negligence. Smith sought damages for pain and suffering, mental anguish, physical impairment, medical expenses, loss of earning capacity, and a "continuing interference with [his] right to health, safety, and peaceful enjoyment of life." Smith also alleged that Galveston and ABL violated his Eighth Amendment rights. (1)

Galveston filed a plea to the jurisdiction, and both Galveston and ABL filed summary judgment motions. (2) In its summary judgment motion, ABL asserted that no evidence supported any of the essential elements of Smith's claims. ABL also argued that it was entitled to summary judgment because the summary judgment evidence on file showed that there were no disputed fact issues. ABL cited testimony from Dr. Mark Guidry, Director of the Galveston County Health District, who opined that the cause and origin of Smith's illness were unknown and that no medical authority could determine the cause of the illness. ABL also cited testimony from Cheryl Moffett, R.N., the health care administrator in charge of the medical clinic at the jail, who stated that the ailments suffered by Smith and the other inmates were not caused by food poisoning.

In its plea to the jurisdiction and summary judgment motion, Galveston similarly asserted that there was no evidence to support the essential elements of Smith's claims and that the evidence affirmatively established that neither it nor ABL proximately caused Smith's injuries. In accord with ABL's motion, Galveston cited Moffett's testimony that all samples taken from the inmates shortly after the incident tested negative for bacteria that would have indicated food-borne illness. Galveston further cited Guidry's testimony that the test results for the inmates came back negative for various bacteria associated with food poisoning and that these results were consistent with the conclusion that there was no instance of food poisoning at the jail. Guidry opined that viral infections would be consistent with the complaints reported by the inmates, but concluded that "no medical authority would be capable of rendering a definitive diagnosis of the cause of the outbreak or illness among the inmates." Finally, Galveston cited testimony from Michael Henson, Commander of the Corrections Division of the Galveston County Jail, that no employee of Galveston had any role in the actual preparation of the food in the jail.

The trial court, without specifying its reasons, signed an order granting ABL's and Galveston's summary judgment motions as to all of Smith's claims. (3)

Summary Judgment

In his first issue, Smith contends that the trial court erred in granting Galveston and ABL summary judgment "based upon no evidence." Within this issue, Smith makes several specific sub-contentions, most of which are distinct from the stated issue, lack any proper citations to legal authority or the record, and are inadequately briefed. See Tex. R. App. P. 38.1(h). We address each of these sub-contentions separately.

First, Smith contends that the trial court abused its discretion in not compelling Galveston and ABL "to produce discovery of policies, regulations, and procedures . . . pertaining to their job descriptions that was essential in establishing negligence, conscious indifference, strict liability, and breach of warranty of fitness for consumption." Smith complains that the trial court never ordered Galveston and ABL "to comply with requests for production or present supplementation" [sic] and that Galveston and ABL "withheld the production documentation." In support of this sub-contention, Smith relies upon a motion to compel filed by his trial counsel in October 2006, prior to his counsel's filing a motion to withdraw.

We review a trial court's discovery orders for an abuse of discretion. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Here, for various reasons, we cannot determine whether the trial court abused its discretion. First, we note that the motion to compel was never ruled upon by the trial court. See Tex. R. App. P. 33.1. Second, to the extent Smith is arguing that the trial court abused its discretion in not ruling upon the motion to compel, Smith, in his appellate briefing, only references the motion to compel in general terms. Smith asserts that the trial court abused its discretion in denying the motion in its entirety; he neither identifies any specific requests, nor does he specifically address the objections asserted in the discovery responses by Galveston or ABL. "A claim of error on appeal must be argued in the party's brief; it is insufficient simply to refer the appellate court to the party's trial court arguments." Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 325 (Tex. App.--Fort Worth 2007, pet. filed). Because Smith, in his brief on appeal, does not address his specific requests or the specific objections posed by Galveston or ABL, we cannot determine whether the trial court abused its discretion in failing to compel, in only general terms, responses to Smith's discovery requests. See id.

Second, Smith contends that the trial court should have granted him a continuance before rendering summary judgment. Our review of the record reveals that Smith's trial counsel had filed motions for continuance in January and February 2007. In these motions, Smith's trial counsel stated, among other things, that he needed more time to secure deposition testimony for certain witnesses. (4) As Smith concedes, however, he was granted a continuance in March 2007, after the filing of these motions. There is no evidence in the record that at the time the trial court rendered summary judgment in favor of Galveston and ABL, Smith had any pending requests for a continuance. Accordingly, the trial court could not have abused its discretion in not granting Smith another continuance. See Tex. R. App. P. 33.1.

Third, Smith contends that his trial counsel presented deposition testimony that defeated summary judgment. However, Smith does not specifically identify this testimony or cite to any other testimony in the record that would defeat the summary judgment. (5) Because this contention is not supported by citations to supporting legal authority or the record, it is inadequately briefed. (6) See Tex. R. App. P. 38.1(h). Fourth, Smith further asserts that "the doctrine of respondeat superior was involved when [ABL,] acting through the facilities of its employer, Galveston County, Texas, caused Smith's illness . . . through negligence in utilizing unsanitary food preparation and utensil procedures . . ." However, Smith cites to no evidence that would establish that ABL acted as an employee of Galveston, and our independent review of the record reveals no evidence that would support this assertion. Moreover, this contention is not supported by citations to supporting legal authority and is inadequately briefed. See id.

Fifth, Smith contends that Galveston waived its immunity by violating its own policies and failing and refusing to conduct evaluations on relevant food samples. This contention is not supported by citations to supporting legal authority or the record and is inadequately briefed. See id.

Sixth, Smith contends that through his "sworn affidavit to interrogatories [and] offer of proof through circumstantial evidence," he "had identified the offending meal and described the same food poisoning symptoms that manifested and persisted with the exact same time frame as other inmates" and that this circumstantial evidence points "to the fact sought to be established with that degree of certainty as to make the conclusion reasonably probable." This contention is not supported by citations to supporting legal authority or the record and is inadequately briefed. See id.

Seventh, Smith contends that there "was evidence of an Eighth Amendment violation of deliberate indifference." Smith argues that Galveston and ABL were involved in a separate food poisoning incident in 2002 and, thus, they "had prior knowledge of . . . a potential risk of food poisoning to the inmates in the instant case." This contention is not supported by citations to supporting legal authority or the record and is inadequately briefed. See id. Moreover, our independent review of the record reveals no evidence that would support Smith's claim of an Eighth Amendment violation.

We overrule Smith's first issue, including the numerous sub-contentions asserted within his first issue.

Smith's Claims Against His Trial Counsel

In his second and third issues, Smith contends that his trial counsel "breached his fiduciary duties in representing [him] in a civil action" and that he "present[ed] a basis for imposing a duty upon his trial counsel when [his] counsel established a duty of care." Within these issues, Smith asserts that his trial counsel "refused to make any timely disclosures of his filed pleadings" and engaged in self-dealing and misrepresentation by demanding and accepting a settlement offer and concealing Smith's recovery. Smith complains that, as a result, he was denied effective representation and was subjected to cruel and unusual punishment. Smith also asserts that his trial counsel committed malpractice by failing to compel discovery and to obtain witnesses and that he "ultimately abandoned" his claims.

Smith, in his briefing, does not clearly set forth his position as to how his attempt to assert claims against his trial counsel for the first time on appeal would impact his claims against Galveston and ABL, which were disposed of by the trial court's summary judgment. The underlying proceedings concerned solely those claims brought by Smith against Galveston and ABL. Smith made no claims against his trial counsel in the underlying proceedings, and the trial court's summary judgment disposing of Smith's claims does not in any way address any claims brought by Smith against his trial counsel. Smith is not entitled to assert these new claims on appeal. See Baxter v. Gardere Wynne Sewell LLP, 182 S.W.3d 460, 465 (Tex. App.--Dallas 2006, pet. denied) (holding that appellants could not assert claim for first time on appeal to avoid summary judgment and noting that "[i]ssues a nonmovant contends avoid summary judgment that are not expressly presented to the trial court by written answer or other written response to the summary judgment motion are waived on appeal"); Loera v. Interstate Inv. Corp., 93 S.W.3d 224, 228 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (noting that DTPA and breach of fiduciary duty theories were never pleaded, were not issues in trial, were not subject of request for finding of fact or conclusion of law and that appellants could not "rewrite their pleadings to allege new causes of action for the first time in a motion for new trial"); see also Tex. R. App. P. 33.1(a).

We overrule Smith's second and third issues.













Conclusion

We affirm the judgment of the trial court.





Terry Jennings

Justice



Panel consists of Chief Justice Radack and Justices Jennings and Bland.

1.

See U.S. Const. amend. VIII.

2.

See Tex. R. Civ. P. 166a(c), (i).

3.

The record contains a motion to withdraw, filed by Smith's trial counsel, in which Smith's trial counsel states that Galveston and ABL made a settlement offer in the underlying litigation, the offer was fair and reasonable, and, after Smith refused to accept the settlement offer, he and Smith developed a contentious relationship. Thus, Smith's trial counsel sought to withdraw from representation of Smith. Although the record does not contain an order granting the motion to withdraw, the parties, in the notice of appeal and briefing, suggest that Smith's trial counsel actually withdrew. Smith is the only party appealing the trial court's summary judgment in this appeal, and he is proceeding pro se. We note that parties who represent themselves pro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed attorneys. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.--Houston [1st Dist.] 1985, no writ).



4.

Smith's trial counsel identified, among others, the following: Francisco Hernandez and Maria Maldonando, line cooks for ABL, to provide testimony regarding the operation of the kitchen on the day "the offending unwholesome meal was served"; Robin Bartholomew, a registered nurse for Correctional Medical Services, to provide testimony regarding the delivery of health care services following the complaints; and Mike Hensen, jail commander, to provide testimony regarding the jail's standard operating policies and procedures.

5.

For example, Smith states, without citation to any record evidence, that "[i]n response to the defendants' motion for summary judgment, [Smith's] trial lawyer . . . presented deposition testimony by Cheryl Moffett, which defeated the motion" and that "there was evidence of a negligent use of tangible property by an employee of Galveston County, Texas which caused an injury to appellant."

6.

Moreover, we note that Smith, in his first issue, states that he is challenging the trial court's granting of Galveston's and ABL's summary judgment motions on no-evidence grounds. However, both Galveston and ABL asserted both that no evidence supported Smith's claims and that they were entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c), (i). The summary judgment evidence cited by Galveston and ABL, which showed that Smith did not suffer food poisoning and that Galveston and ABL could not have caused his injuries, was undisputed in the trial court. The trial court's order granting summary judgment in favor of Galveston and ABL was not limited to no-evidence grounds. Rather, the order could have been based upon the summary judgment evidence that established that Galveston and ABL did not cause Smith's injuries. When, as in this case, a summary judgment does not specify the grounds on which the trial court granted it, the reviewing court will affirm the judgment if any theory included in the motion is meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Furthermore, when, as in this case, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.). If summary judgment may have been rendered, properly or improperly, on a ground not challenged on appeal, the judgment must be affirmed. Ellis, 68 S.W.3d at 898. To the extent that Smith is challenging the granting of summary judgment solely on the basis of no-evidence grounds, we must affirm the summary judgment on the basis that Smith did not address the alternative summary judgment grounds. See id.